Thursday, March 27, 2014
An NLRB Regional Director ("RD")in Illinois just directed an election in a unit involving college football players. Download Northwestern University RD Decision
The Regional Director held that football players who were given scholarships were employees and not students. The RD applied the common law right to control test.
Of significance is that the RD distinguished Brown University which held that graduate students were not employees. Rather, they were students. According to the RD, graduate assistant responsibilities were inextricabley related to there graduate studies. Additionally, unlike Brown, the RD concluded that the football players were not primarily students, the scholarship was not a core element of their degree, the academic faculty did not supervise the football players and the scholarship was not a form of financial aid.
Those of you who know me, know that I believe that Brown University was wrongly decided and that the Board erred in Brown by not applying the common law right to control test. However, Brown remains the law until it is over-ruled by the Obama Board (which I expect to happen), and I find the RD decision poorly reasoned and disingenous. The basis which the RD used to distinguish Brown make no sense.
The football players are enrolled in the college and they are getting a degree. No doubt they generate income for the college, but so do graduate assistants. The fact that they are not supervised by the academic faculty and that playing football is not financial aid is totally irrelevant. The football players all must be enrolled in the college and I believe the NCAAA even sets academic standards that they must meet.
I doubt however, that this case will be reversed on appeal. As I said, Brown was wrongly decided and this decision may give the Board the opportunity to over-rule it for once and for all.
Mitchell H. Rubinstein